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Justinian I · The Digest of Justinian §35.3.4.pr-35.3.4.3

Praetorian Inquiry on Pre-Trial Security and Its Scope

Passage 5545 of 9271 · Latin

Summary

Paulus explains the unfairness of requiring security before a lawsuit is brought and the praetor's role in examining it, while discussing the actions available against possessors and claimants, and the differing necessity of security based on whether one delivers personal or hereditary assets.

[PAULUS libro septuagesimo quinto ad edictum. ] §35.3.4.prHaec autem satisdatio locum habet, si iusta causa esse uidebitur: nam iniquum erat omnimodo caueri nondum illata controuersia litis, cum possint ei lusoriae minae fieri: ideoque eam rem praetor ad cognitionem suam reuocat.
[PAULUS libro septuagesimo quinto ad edictum.] This security, however, takes place if there appears to be a just cause; for it was unfair that security should be given in every case when no controversy of a lawsuit had yet been brought, since empty threats could be made against him; and therefore the praetor refers this matter to his own investigation.
§35.3.4.1Si duo ex testamento hereditatem in solidum sibi uindicent, forte quod eiusdem nominis sint, tam in possessorem quam in petitorem competunt actiones et creditoribus et legatariis.
If two persons claim the inheritance for themselves in full under a will, perhaps because they are of the same name, actions are available to both creditors and legatees against the possessor as well as against the claimant.
§35.3.4.2Haec cautio utique necessaria est, si quis pecuniam suam soluat uel rem tradat: si uero pecuniam hereditariam soluat uel rem tradat, quidam non putant cauendum, quia nec teneri potest eo nomine uictus, cum non possideat uel dolo fecerit, quo minus possideat.
This security is indeed necessary if anyone pays his own money or delivers his own thing; but if he pays hereditary money or delivers a hereditary thing, some do not think that security should be given, because even if defeated he cannot be held liable on that account, since he does not possess or has acted with fraud so that he does not possess.
hoc si ante motam controuersiam soluat: quod si postea, tenebitur culpae nomine.
This is so if he pays before the controversy is moved; but if afterwards, he will be liable on account of negligence.
§35.3.4.3Sed cum de nomine inter duos quaestio est, numquid non sit cauendum ei, qui hereditariam rem tradat, quia omnimodo unus liberatur: quemadmodum si aes alienum hereditarium soluatur? sed si petitor suam pecuniam soluet aut rem suam tradat, non habet unde retineat et ideo necessaria est ei cautio.
But when there is a question between two concerning the name, is it not the case that security should not be given to him who delivers a hereditary thing, because in any event one of them is released, just as if a hereditary debt is paid? But if the claimant pays his own money or delivers his own thing, he has nothing from which he may retain, and therefore security is necessary for him.

Notes

  1. §35.3.4.prnondum illata controuersia litis — Ablative absolute consisting of the noun controuersia and the perfect passive participle illata (from inferre). nondum negates the whole phrase, expressing time or condition: "when a controversy of a lawsuit had not yet been brought."
  2. §35.3.4.2dolo fecerit, quo minus possideat — The phrase consists of fecerit (perfect subjunctive or future perfect indicative) followed by quo minus (quominus) + subjunctive (possideat), forming a clause of prevention: "has acted with fraud to prevent himself from possessing" (or "lest he possess").
  3. §35.3.4.3numquid non sit cauendum ei — numquid is an interrogative particle typically expecting a negative answer. Here, used with the impersonal passive gerundive cauendum (esse) and the dative of agent ei, it expresses a rhetorical question: "is it not the case that security should not be given to him?"

Cite this passage

Justinian I, The Digest of Justinian §35.3.4.pr-35.3.4.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.3.4.pr-35.3.4.3

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